UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 14-1958

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff Appellant,
v.
WOMBLE CARLYLE SANDRIDGE & RICE, LLP,
Defendant Appellee.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:13-cv-00046-CCE-LPA)

Argued:

May 13, 2015

Decided:

June 26, 2015

Before NIEMEYER, DUNCAN, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Susan L.P. Starr, U.S. EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION, Washington, D.C., for Appellant. Jill S. Stricklin,
CONSTANGY, BROOKS & SMITH, LLP, Winston-Salem, North Carolina,
for Appellee.
ON BRIEF: P. David Lopez, General Counsel,
Carolyn L. Wheeler, Acting Associate General Counsel, Lorraine
C. Davis, Assistant General Counsel, Office of General Counsel,
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Washington, D.C.,
for Appellant.
W.R. Loftis, Jr., CONSTANGY, BROOKS & SMITH,
LLP, Winston-Salem, North Carolina, for Appellee.

Unpublished opinions are not binding precedent in this circuit.

PER CURIAM:
The

Equal

Employment

Opportunity

Commission

(EEOC)

appeals the district courts grant of summary judgment in favor

of Womble Carlyle Sandridge & Rice, LLP (Womble Carlyle) on
the

EEOCs

claim

under

Disabilities Act (ADA).

Title

of

the

Americans

with

For the following reasons, we affirm.

I.
A.
Womble

Carlyle

is

full

service,

comprised of over 500 lawyers in 14 offices.

business

law

firm

The Winston-Salem,

North Carolina, location is composed of a main office, at One

West Fourth Street, and two satellite buildings, Liberty Plaza
and Winston Tower.
Among

other

staff,

the

firm

employs

about

15

Support

Services Assistants (SSAs), who have the following duties:

to provide basic, entry-level operating functions,
such as operating high-volume copy and scanning
machines and performing associated tasks, shipping and
receiving products and supplies, handling incoming and
outgoing mail and other correspondence, handling basic
maintenance and repair of copiers, making offsite
pick-ups
and
deliveries,
responding
to
and
coordinating
service
calls,
as
well
as
binding
documents, conducting quality control checks on work
done in the Support Services Center, performing basic
housekeeping/hospitality functions, working in the
internal message center, and performing other duties
as assigned.

J.A. 3435.

Many of these functions require heavy lifting, and

the performance of any of the listed functions may be required

during any given shift.
We

basically

During

do

As one SSA explained in her deposition,

whatever

typical

shift,

they

many

need

SSAs

us

are

to

do.

present,

J.A.
which

350.

allows

those employees to share and divide tasks based on availability.

However, SSAs are also required to work shifts alone, either on
Saturdays

based

on

rotating

schedule,

or

at

the

satellite

buildings.
Charlesetta Jennings, the complainant, began work at the
firm as an SSA in April 2000.

She worked primarily in the copy

room, where she copied, scanned, and printed documents.

also

performed

other

tasks,

such

as

delivering

mail

But she
to

each

floor (floor runs) of the One West Fourth Street location,

assisting

with

express-delivery

shipments,

filling

in

for

receptionists during their breaks and vacations, and handling

the range of tasks that arose during her shifts on Saturdays or
at Liberty Plaza and Winston Tower.
In July 2008, Jennings was diagnosed with breast cancer.
She had surgery the next month and, after taking a short leave
of

absence,

intermittent

returned
leave

to

while

work

in

September

undergoing

until January 2009.

2008.

chemotherapy

She

took

treatments

In November 2009, Jennings noticed tenderness and swelling

in her left arm.

Doctors diagnosed Jennings with lymphedema, a

condition caused by breast cancer treatment and which affects

the circulatory and immune systems.
lifting.

It is triggered by heavy

Following the diagnosis, although her work sometimes

required lifting heavy items such as packages or boxes of paper,

Jennings devised alternate methods for accomplishing those tasks
and was able to avoid further injury for about seven months. 1
Unfortunately, in June 2010, Jennings suffered an injury at
work due to unavoidable heavy lifting.

She was working alone at

Liberty Plaza and, in order to prepare a shipment, had to tape

up and move about 14 boxes ranging in weight from 32 to 38
pounds each in addition to moving some paper boxes weighing 50
pounds each from one location to another.

J.A. 76.

Because of

the location of the scale used to weigh the boxes, Jennings was
not able to use any of the alternate methods she had used at
other times to avoid the heavy lifting.

This undertaking caused

For example, in order to move multiple boxes of paper

using a hand cart, instead of lifting each box and placing it on
the cart, Jennings would slide the first box onto the cart, then
wheel the cart to the next box, which was stacked high enough
for her to slide it onto the cart as well. And to prepare heavy
shipments, instead of filling a box and then lifting it onto the
scale, Jennings would put the empty box on the scale, add the
contents to be shipped a bit at a time, slide it off of the
scale, tape it up, slide it onto a chair, and then roll the
chair to where the package needed to be left for shipment.

pain and swelling in her left arm.

days of work.

Jennings missed the next two

She returned on the third day after the injury,

but had to leave early because, while working alone at Winston

Tower, she had to move some FedEx boxes weighing between 10 and
30

pounds,

shoulder.

and

she

could

feel . . .

the

soreness

in

[her]

J.A. 228.

After the incidents, Jennings submitted a doctors note to

Womble Carlyle that stated that, due to the risk of lymphedema,
she could not lift more than 10 pounds.

After learning of the

lifting restriction, Womble Carlyles Office Manager and Support

Services

Manager

conferred

to

determine

Jennings could and could not perform.

what

SSA

functions

They determined that she

was unable to perform the following functions:

working alone at Liberty Plaza or Winston Tower

working alone on Saturdays
copying and scanning documents without assistance
managing supplies
setting up conference rooms
loading or unloading trucks
delivering or picking up packages offsite
delivering to, or picking up mail or packages from,
the post office or offices within the Womble Carlyle
buildings
delivering and receiving packages on an express
basis
assisting with office moves for attorneys or other
personnel
performing hospitality and housekeeping tasks
managing files

J.A. 3943.

By contrast, the managers determined that Jennings,

lifting restriction notwithstanding, could perform the following

functions:
copying and scanning documents with assistance
delivering confidential light-weight envelopes
within the firm
performing quality checks (e.g., making sure copies
matched originals)
filling in for receptionists on breaks or out of the
office
J.A. 4546.
and

scan

By Jenningss account, she was also able to copy

documents

without

assistance

and

prepare

heavy

shipments using her alternate work methods.

Womble

Carlyle

accommodated

Jenningss

10-pound

lifting

restriction for about six months by assigning her light-duty

work.

For example, between August 2010 and November 2010, she

was able to spend approximately one-third of her working hours

on a large scanning project.

Even though the boxes containing

the documents to be scanned weighed between 30 and 50 pounds,

she was able to avoid lifting over 10 pounds by using modified
work methods.

See J.A. 27374.

In addition to working on the

scanning project during this time, Jennings also filled in for

receptionists who were out of the office; delivered small items
within

the

building;

performed

quality

checks,

book

binding,

print jobs, and Bates stamping; sorted mail; sent faxes; and
assisted

with

light-weight

workspace

clean-up.

Tasks

express-delivery
she
6

had

performed

packages

and

prior

her

to

injury, but which she did not do during this time, included
making

floor

runs,

assisting

with

express-delivery

packages

weighing more than 10 pounds, and filling in at the satellite

buildings.
Jenningss

supervisors

testified

that

after

the

scanning

project was complete, she was often idle at work because of her
limitations.

One supervisor estimated that she worked no more

than 20% of each day.

Jennings, by contrast, testified that the

reduction in work after the scanning project was [n]o more than
normal, and was instead the result of the unpredictable daily
workload.

J.A. 27879.

On February 1, 2011, Jennings provided Womble Carlyle with

an updated doctors note stating that she could lift up to 20
pounds.

Both Jenningss and Womble Carlyles understanding was

that this restriction was permanent.

Womble Carlyles Office

Manager then reassessed Jenningss capabilities, concluding that

the list of tasks she could and could not perform with a 10pound limit remained the same even with the 20-pound limit.
Office

Manager

transfer
concluded

also

Jennings
that

to

considered
another

Jennings

might

whether

Womble

job

position.

be

qualified

Carlyle

The
could

Although
to

work

she
as

receptionist or message center operator, those positions were

already filled.

On February 9, 2011, the Office Manager placed Jennings on

a medical leave of absence.

When it ran out in August 2011,

Womble Carlyle terminated her employment.

B.
Jennings

filed

charges

of

discrimination

with

the

EEOC,

alleging that Womble Carlyle violated Title I of the ADA.

The

EEOC brought suit based on those charges in the United States

District

Court

for

the

Middle

District

of

North

Carolina.

Womble Carlyle moved for summary judgment, which the district

court granted on the ground that, at the time she was fired,
Jennings could not perform the essential functions of her job
with or without reasonable accommodation, and no reasonable jury
could find otherwise.
First, the district court concluded that lifting more than
20 pounds was an essential function of the job.

In so deciding,

the court relied on the SSA job description, the judgment of

Womble Carlyles managers, the experience of SSAs as described
through

deposition

testimony,

and

the

firms

proffered

consequences of removing all heavy-lifting tasks from an SSAs

duties--namely that other SSAs would have to work harder and
longer,

and

diminished.
(8th

Cir.

personal

the

overall

flexibility

of

the

team

would

be

Citing Dropinski v. Douglas County, 298 F.3d 704

2002),

which

experience

is

held
of

that

no

an

employees

consequence
8

in

the

specific
essential

functions equation, id. at 709, the court focused on the SSA

position generally, even though there were some heavy-lifting
tasks that Jennings had never been required to do.

Indeed, the

court noted that it is undisputed that all SSAs, including Ms.

Jennings,

were

involving

heavy

routinely
lifting

required

and

that

to
even

perform
if

some

certain

tasks

SSAs

had

primary responsibility for these tasks, others were required to

fill in as needed.

EEOC v. Womble Carlyle Sandridge & Rice,

LLP, No. 1:13CV46, 2014 WL 2916851, at *6 (M.D.N.C. June 26,

2014).
Second, the district court concluded that Jennings could
not lift more than 20 pounds even with reasonable accommodation.
Even though she could get around some heavy-lifting tasks by
using modified work methods, there were too many tasks she could
not perform with modifications.

She could not:

work at Liberty Plaza or Winston Tower, work the

Saturday shift, deliver mail to the floors, deliver
boxes of copy paper, pick up or deliver copy jobs
weighing more than twenty pounds, lift or carry
packages weighing over twenty pounds that needed to be
shipped or mailed, move heavy furniture, or complete
other tasks that involved or could involve lifting
more than twenty pounds.
Id. at *7.

The court concluded that it would not be reasonable

to excuse Jennings from all those tasks because doing so would

force Womble Carlyle to create a modified light-duty position,
which the ADA does not require.

Id. (citing Shin v. Univ. of

Md. Med. Sys. Corp., 369 F. Appx 472, 482 (4th Cir. 2010)).
The court also concluded that it would not be reasonable to
require

Womble

Carlyle

to

assign

one

or

more

SSAs

to

help

Jennings with all heavy-lifting tasks, as that would in effect

reallocate essential functions, which the ADA does not require.
Id.

(citing

Shin,

369

F.

Appx

at

482).

The

EEOC

timely

appealed.

II.
We review the grant of summary judgment de novo, using the
same standards as applied by the district court.

Hartsell v.

Duplex Prods., Inc., 123 F.3d 766, 771 (4th Cir. 1997).

Summary

judgment is appropriate only when there is no genuine issue as

to

any

material

fact

and

the

judgment as a matter of law.

v.

Catrett,

477

determination,

we

U.S.

317,

must

moving

party

is

entitled

to

Fed. R. Civ. P. 56; Celotex Corp.

322-23

review

(1986).
the

In

record

making

taken

this
as

whole . . . [and] draw all reasonable inferences in favor of

the

nonmoving

party.

Reeves

v.

Sanderson

Plumbing

Prods.,

Inc., 530 U.S. 133, 150 (2000) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

10

III.
On appeal, the EEOC argues that the district court erred in
granting summary judgment for Womble Carlyle because Jennings
could

perform

the

essential

functions

without reasonable accommodation.

of

the

SSA

job

even

Alternatively, it argues that

requiring other SSAs to help with tasks that involve lifting

over 20 pounds is a reasonable accommodation that would have
enabled Jennings to perform the essential functions of the job.
We disagree.
brief

In the discussion that follows, we begin with a

discussion

consider

(1)

of

the

whether

governing

Jennings

legal

could

framework,

perform

the

and

then

essential

functions of the job; and (2) if she could not, whether the EEOC
identified a reasonable accommodation that would have enabled
her to do so.
A.
Under Title I of the ADA, an employer cannot discriminate
against a qualified individual on the basis of disability.
U.S.C. 12112(a).

42

A qualified individual is an individual

who, with or without reasonable accommodation, can perform the

essential

functions

of

the

employment

individual holds or desires.

position

Id. 12111(8).

that

such

[E]ssential

functions of the job[] [are] functions that bear more than a

marginal

relationship

to

the

job.

Tyndall

v.

Natl

Educ.

Ctrs., Inc., 31 F.3d 209, 213 (4th Cir. 1994) (quoting Chandler
11

v. City of Dallas, 2 F.3d 1385, 1393 (5th Cir. 1993)); accord 29

C.F.R. 1630.2(n)(1).
The plaintiff bears the burden of demonstrating that [the
complainant] could perform the essential functions of her job.
Tyndall, 31 F.3d at 213.

It satisfies that burden by showing

that she could perform the essential functions with or without

reasonable

accommodation.

42

U.S.C.

12111(8).

The

term

reasonable accommodation means [m]odifications or adjustments

to the work environment, or to the manner or circumstances under
which the position held or desired is customarily performed,
that enable an individual with a disability . . . to perform the
essential

functions

of

1630.2(o)(1)(ii).

that

While

position.

reallocating

29

or

C.F.R.

redistributing

nonessential, marginal job functions is a potential reasonable

accommodation,
accommodation

29
is

C.F.R.
not

pt.

1630

reasonable

app.

under

1630.2(o),
the

ADA

if

an
it

reallocate[s] essential functions, id.; accord Shin, 369 F.

Appx at 482; see also Peters v. City of Mauston, 311 F.3d 835,
845 (7th Cir. 2002) (holding that the employees request that
someone

else

because

it

do

the

[would]

heavy

lifting

require[]

for

another

essential function of [the] job).

12

him

was

person

unreasonable

to

perform

an

B.
Turning

to

the

merits

of

EEOCs

appeal,

we

hold

that

summary judgment was appropriate because the record in this case

shows

beyond

dispute

that

(1)

Jennings

could

not

perform

an

essential function of the job; and (2) the EEOC has identified
no reasonable accommodation that would satisfy its burden to
show the contrary. 2

We discuss each of these conclusions in

turn.
1.
We

first

conclude

that,

because

the

SSA

position

is

multifaceted--requiring the ability to perform a wide variety of

tasks during any one shift--and many of those tasks could at any
time require lifting over 20 pounds, the ability to lift that
amount is an essential function of the job.

In determining

We reject the EEOCs argument that Womble Carlyle violated

the ADA by failing to engage in an interactive process to
identify a reasonable accommodation for Jennings. The duty to
engage in an interactive process . . . is generally triggered
when an employee communicates to his employer his disability and
his desire for an accommodation for that disability, Wilson v.
Dollar Gen. Corp., 717 F.3d 337, 34647 (4th Cir. 2013), and
there is no evidence in the record indicating that Jennings ever
requested an accommodation. In fact, she testified that she did
not tell anyone that she needed an accommodation before her
disability leave. J.A. 286. And even if Womble Carlyles duty
to engage in the interactive process was triggered, an employer
who fails to engage in the interactive process will not be held
liable
if
the
[plaintiff]
cannot
identify
a
reasonable
accommodation that would have been possible. Wilson, 717 F.3d
at 347. The EEOC has identified no such accommodation.

13

whether a responsibility is an essential function of a job, we

look to the general components of the job rather than to the
employees

particular

experience.

That

an

employee

may

typically be assigned to only certain tasks of a multifaceted

job does not necessarily mean that those tasks to which she was
not assigned are not essential.

Phelps v. Optima Health, Inc.,

251 F.3d 21, 26 (1st Cir. 2001); see also Anderson v. Coors
Brewing Co., 181 F.3d 1171, 117576 (10th Cir. 1999) (holding
that

the

district

court

properly

considered

the

essential

functions of the position for which the plaintiff was hired, as

opposed

to

assigned).

those
Here,

of

the

it

is

narrower

position

undisputed

that

to
the

which
SSA

she

was

position

requires the ability to perform a wide variety of tasks.

As

discussed above, the SSA duties are numerous and varied, see
J.A. 3435, and as one SSA testified, We basically do whatever
they need us to do, J.A. 350.

Even though Jennings worked

primarily in the copy room, she could have, at any time, been
called upon to move heavy furniture or carry heavy packages.

As

the district court summarized, it is undisputed that all SSAs,

including Ms. Jennings, were routinely required to perform some
tasks involving heavy lifting and that even if certain SSAs had
primary responsibility for these tasks, others were required to
fill in as needed.

EEOC, 2014 WL 2916851, at *6.

14

In addition, it is undisputed that many SSA tasks require

lifting over 20 pounds.

Both Jenningss own testimony and that

of other SSAs confirm this.

For example, Jennings testified

that she was, at times, assigned to help with express-delivery

packages that weighed over 20 pounds, J.A. 174; do floor runs,
which required lifting heavy mail buckets, J.A. 17778; and work
alone

at

Liberty

Plaza,

pounds, J.A. 19899.

which

involved

lifting

more

than

20

Indeed, it was lifting boxes weighing over

20 pounds at Liberty Plaza that caused Jenningss injury in June

2010.

J.A. 76.

Other SSAs also testified to being called upon

to lift heavy express-delivery packages, J.A. 342-43, carry 50pound boxes, J.A. 36364, and help with office moves, J.A. 366,
among other heavy-lifting tasks.
Because so many facets of the SSA job may at any time
require lifting over 20 pounds, the ability to do so bear[s]
more than a marginal relationship to the job, and is thus an
essential function of the position.

Tyndall, 31 F.3d at 213.

And because Jennings was unable to lift that amount, she was
unable to perform an essential function of the job.
The

EEOCs

arguments

to

the

contrary

are

unpersuasive.

First, the EEOC argues that, despite Jenningss inability to

lift more than 20 pounds, she could nevertheless perform the
essential functions of the SSA job, as evidenced by her strong
performance reviews.

In support of this contention, the EEOC

15

states: It is uncontested that Jennings performed her job at

Womble Carlyle for years, between 2008 and 2011, working at both
satellite buildings and on Saturdays, and received only good
performance
reprimands

reviews
and

with

that

twenty pounds.

she

no

did

official
this

complaints

without

Appellants Br. at 19.

lifting

and
more

no
than

The EEOCs argument is

refuted by both the record and Jenningss own experience.

Her

testimony reflects that she did lift more than 20 pounds prior
to her injury, and her alternate work methods did not prevent
her

from

having

to

lift

more

than

20

pounds

and

injuring

herself.
Relatedly,

the

EEOC

argues

that

Jenningss

work-around

methods enabled her to perform enough functions of the job such

that the ability to lift over 20 pounds was non-essential.

To

be sure, Jennings was able to devise ways to do some tasks, but

she remained unable to do many more.

She could not work alone

at Liberty Plaza or Winston Tower or on Saturdays, assist with

office moves, deliver or pick up packages from offsite or among
any of the three Womble Carlyle buildings, set up conference
rooms,

or

any

of

number

of

tasks.

Thus,

even

though

Jenningss work-around methods enabled her to perform a small

subset of the jobs responsibilities, the ability to lift over
20 pounds was inextricably tied to the vast majority of them.
Accordingly,

Jenningss

own

experience
16

demonstrates

that

the

ability to lift that amount was an essential function of the SSA

job--which she was unable to perform.
of

Corr.,

107

F.3d

483,

484-85

Cf. Miller v. Ill. Dept

(7th

Cir.

1997)

(deeming

correctional officer unable to perform the essential functions

of the job where her legal blindness enabled her to perform only
a few administrative tasks, but prevented her from performing
any inmate control or safety functions).
2.
Because
essential

we

conclude

function

of

that
the

Jennings

job,

she

could
was

not

not

perform
a

an

qualified

individual unless the EEOC has carried its burden to show that a
reasonable accommodation would have enabled her to do so.

We

agree with the district court that it has not.

Excusing Jennings from all heavy lifting would not have
been a reasonable accommodation, and the EEOC does not argue to
the contrary.

Moreover, requiring assistance for all tasks that

involve lifting more than 20 pounds would reallocate essential

functions, which the ADA does not require.
1630 app. 1630.2(o).

See 29 C.F.R. pt.

And it is undisputed that assistance was

not always available, such as when Jennings was working alone.

IV.
We are not unsympathetic to Jenningss situation.

Indeed,

we admire her pluck and innovative attempts to prevent injury.

17

Womble

Carlyle,

too,

appears

to

have

been

impressed

with

Jennings, describing her as a very hard worker, J.A. 470, with

a positive attitude, J.A. 510.

However, the unfortunate truth

is

disability,

that, because

of

Jenningss

she

is

unable

to

perform an essential function of the SSA job without a serious

risk of further injury.

For that reason, the judgment of the

district court is
AFFIRMED.

18